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State v. Bondurant3/20/1998
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Because strict adherence to statutory jury selection procedures is essential to the integrity of the judicial process and the instilling of public confidence in the administration of Justice, we hold that proof of actual prejudice is not required in circumstances such as this when the deviation is flagrant, unreasonable, and unnecessary.
Id. at 894.
Unlike the situation in Lynn, in the present case, time was of the essence in obtaining more jurors. The original venire was exhausted, and more jurors were needed by the next day. Moreover, while the defendant objected before the jury was sworn, he contributed to the situation by failing to object when the trial court announced that the clerk would be calling a special venire. The facts of this case are further distinguished in that there was no initial taint to the original venire from jury tampering as in Lynn. We read Lynn, in conjunction with Tennessee Code Annotated section 22-2-313, as applying narrowly to the facts of that case. Specifically, not only were the procedures for selecting a special venire violated, counsel was not notified of the calling of a special venire, and there were claims of jury tampering. Based on these cumulative errors, the supreme court was compelled to reverse the conviction in Lynn. The circumstances of this case do not require the same result without a showing of prejudice, which the defendant has failed to do. This issue has no merit.
B. Systematic Exclusion of Women From Petit Juries in Maury County
The defendant contends that the representation of women, a distinctive group in the community, on the jury summons lists in Maury County was not fair and reasonable in relation to the number of women over the age of 18 in the community. The defendant contends, based on statistical data, there is an absolute disparity of 16%, a comparative disparity of 30%, and a discrepancy of 19.6 standard deviations. Moreover, the defendant submits that women have been consistently under represented on every Maury County summons list issued between February 1989 and the defendant's trial in December 1991. To the extent trial counsel failed to bring meritorious errors to the trial court's attention, the defendant contends he is entitled to relief based on ineffective assistance of counsel.
While the state asserts that this issue has been waived, we note that in Charles Walton Wright v. State, No. 01C01-9105-CR-00149 (Tenn. Crim. App., Nashville, April 7, 1994), perm. app. denied (Tenn. 1994), cert. denied, 513 U.S. 1163, 115 S. Ct. 1129 (1995), this Court held that the state's claim of waiver for the first time on appeal could "defeat substantial Justice if there was potential merit ... to a claim of constitutional wrongdoing and the parties proceeded in the trial court without litigating or intending to litigate the issue of waiver." Charles Walton Wright, slip op. at 34. However, if the substantive claim had no merit, a remand is unnecessary. Id. At the hearing on the motion for new trial, the state did not present proof or argument on this issue. Moreover, although invited by the trial court to file a written response, the record does not reflect that a response was filed by the state. As such, the state is in the position of raising waiver for the first time on appeal. Accordingly, a review of the substantive claim is necessary; however, we find this issue is without merit.
In denying relief, the trial court stated:
he Defendant asserts a violation of his right to an impartial jury selected from a fair cross-section of the community due to systematic exclusion of women from Maury County Petit juries. While Defendant has raised the issue of systematic exc
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